Reminisce Sports Bar Limited t/a Reminisce Bar & Grill & 3 others v Cabinet Secretary Ministry of Transport & 7 others [2017] KECA 613 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the breathalyser rules but confirmed no one can be charged under the rules alone, only under the Traffic Act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the Minister have power to make the Breathalyser Rules?
- 2.Do the Breathalyser Rules violate Article 94(5) of the Constitution?
- 3.Is there a new offence created by the Breathalyser Rules?
- 4.Do the Rules criminalize consumption of alcohol by motorists beyond the prescribed limits irrespective of whether such consumption has rendered the motorist incapable of proper control of the motor vehicle?
- 5.Do the Breathalyser Rules violate the dignity of the motorist?
- 6.Under what circumstances should the Breathalyser test be administered by police?
Key legal issues
#Whether the Minister had power under section 119(1) of the Traffic Act to make the Traffic (Breathalyser) Rules 2011
The Minister had the power and did not exceed his delegated authority; the rules do not violate Article 94(5) of the Constitution.
Section 119(1) empowers the Minister to make rules for regulating the use of vehicles as road safety may require, including measures for better carrying out the Act. The rules aim at public good by reducing road fatalities. The Statutory Instruments Act 2013 was not in force when they were made, and section 27 of that Act preserved them.
Whether the Breathalyser Rules create a new offence of driving with blood alcohol beyond the prescribed limit
The rules do not create an independent offence and cannot override the parent Act; rule 3(1) must be read with sections 44 and 45 of the Traffic Act.
Section 44 penalises driving while under the influence to the extent of being incapable of proper control, not drinking per se. Rules cannot amend statutory provisions. Since rule 3(1) purports to criminalise exceeding the prescribed limit regardless of loss of control, it conflicts with section 44(1) and must give way; the dichotomy renders the rules bad in law to that extent.
Whether the appellants proved violation of their fundamental rights and freedoms
No; the claims were hypothetical and wholly unsupported by evidence.
The 2nd appellant was never stopped or subjected to a breathalyser test and the 1st appellant is a corporate body incapable of driving. Alleged business losses were not proved. Absent any factual foundation, the High Court was asked to engage in a hypothetical exercise and the claims deserved dismissal.
Circumstances in which a breath test may be administered
A uniformed officer with reasonable cause to suspect that a motorist has committed a traffic offence or appears to have consumed alcohol may require a breath specimen; this is not discriminatory or degrading.
Stopping motorists on reasonable suspicion applies uniformly and is not discriminatory. Breathalyser tests serve the public good, protecting rights to life, health and dignity; they do not violate privacy, dignity or fair trial rights nor amount to self-incrimination, as comparative foreign authority confirms.
Legal principles established
#- Subsidiary legislation cannot create an offence independent of, or inconsistent with, the provisions of its parent Act; where a rule cannot be reconciled with the statute, the rule must give way.
- No one can be charged under rule 3(1) of the Traffic (Breathalyser) Rules 2011 because the rules are incapable of creating an offence independent of sections 44 and 45 of the Traffic Act.
- Constitutional petitions alleging violation of fundamental rights must be founded on actual facts, not hypothesis; unsupported allegations of rights violations will be dismissed.
Court orders
#- 1.The appeal and all the appellants' claims are dismissed
- 2.Each party shall bear its own costs on account of the public interest nature of the issues
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 92 of 2014 (consolidated with Petition No. 70 of 2014)
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's determination of a constitutional petition (Article 164 of the Constitution; the judgment does not expressly cite the provision)
Relief refused
#Declarations that the Traffic (Breathalyser) Rules 2011 are void for inconsistency with Articles 1, 3, 10, 27, 28, 29, 31, 47, 50 and 94(5) of the Constitution
The Minister did not exceed delegated power; the rules are not shown to be inconsistent with the Constitution or any statute
Order of certiorari to quash the Traffic (Breathalyser) Rules 2011
Although badly drafted, the rules remain valid subsidiary legislation that must give way to the Act only where inconsistent; the appeal otherwise lacked merit
Damages for alleged violation of rights to dignity, privacy, property and fair administrative action
Claims were hypothetical and unsupported by any evidence; the 2nd appellant was never subjected to a breathalyser test
Costs
In view of the public interest nature of the issues in the appeal, each party shall bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we dismiss the appeal and all the appellants’ claims.
In view of the public interest nature of the issues in the appeal, we order that each party shall bear its own costs.
Having regard to the principle that Rules cannot repeal or contradict express provisions in the parent Act from which they derive their authority... it seems clear to us that while the Breathylser Rules were well intentioned, their ill-promulgation rendered them bad in law.
No one can be charged under rule 3(1) of the Breathyliser Rules.
In both the claims for breach of the fundamental rights and loss of business, there was not a scintilla of evidence before the judge to prove the allegations.
For this reason we dismiss those claims as we do not consider it necessary to dissipate more time and energy examining hoax allegations.
Issues in the judgment
#Internal inconsistency: the court at one point endorses the trial judge's finding that the rules create no new offence and violate no rights, but later holds the rules 'bad in law' for conflicting with section 44(1)
The judgment refers inconsistently to the year of the Rules and to counsel's name
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zaheer Jhanda & another v Independent Electoral & Boundaries Commission & 3 others [2018] KECA 432 (KLR)[2018] KECA 432 (KLR)5 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Reminisce Sports Bar Limited t/a Reminisce Bar & Grill & 3 others v Cabinet Secretary Ministry of Transport & 7 others [2017] KECA 613 (KLR)", Case Analysis (2017). Civil Appeal No. 219 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/613/eng@2017-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.